|I. General Information|
|II. Before the Hearing|
|III. At the Hearing|
|IV. Following the Hearing|
|I. General information
Statutes and administrative rules control how the WERC processes appeals arising from State civil service personnel actions. What follows is an overview of those procedures. Please note:
• The WERC does not conduct an investigation of a claim.
• The WERC serves as the judge in this dispute and not as a lawyer or advocate for any of the parties.
The person who files an appeal (the “appellant”), may represent him/herself (may appear “pro se”) or may choose to be represented by an attorney or by a non-attorney representative. Many appellants appear without a representative. If there is any chance an appellant will be represented by an attorney at hearing, the appellant should promptly pursue making arrangements with an attorney to do so. The state agency party in a case (“respondent”) may also be represented by someone who is not an attorney.
The appellant has a responsibility to actively pursue the case once it is filed. Failure to pursue a case may result in dismissal.
Depending on the specifics of an individual case, the appeal process may be lengthy and time-consuming. For this and other reasons, the Commission encourages parties to consider settlement at any point in the process. In many instances, limits on the Commission’s authority to grant effective relief have a significant impact on settlement terms. Brief summaries of some past decisions that help explain what relief the Commission may award: Discovery and Remedies Outline. Settlements are usually documented in the form of written agreements signed by the parties.
The Commission’s website can be used to access all of the topics addressed in prior State civil service appeal decisions. These rulings may provide you with information about how an issue that is important to you has been decided in the past, Even though the Commission is not required to apply this precedent to new appeals, the rulings can provide helpful guidance.
As a general rule, a party must send the opposing party’s representative a copy of any materials sent to the WERC hearing examiner. While a party may contact the examiner directly about purely procedural questions, comments to the examiner about substantive issues must be made in presence of the opposing party. As a general matter, the parties should not copy the hearing examiner when corresponding about terms of a possible settlement.
Most appeals follow a course that may end up with a contested case hearing (formal hearing). However, those appellants in classification appeals filed under Sec. 230.44(1)(b), Stats., may choose to proceed by expedited arbitration, a less formal process. The distinctions between these two procedures are explained on a separate document entitled “Information on Expedited Arbitration of Classification Appeals“, and the Commission typically provides a copy of this document to the appellant after a classification appeal has been filed. Not all of the information found below applies to expedited arbitration proceedings, but all of it applies to the contested case hearing process that is described beginning in Sec. 227.44, Stats.
Administrative proceedings conducted by the WERC are not the same as judicial proceedings before a court, but there are parallels. Courts have a much wider range of authority, both civil and criminal. The WERC’s authority is narrower and its procedures are less formal, reflecting the fact that many appellants in civil service appeals participate without the benefit of an attorney.
II. Before the Hearing
A. Initial processing
The WERC will review each new state civil service appeal to identify the state agency that took the underlying personnel action and assigns a case number to the appeal. They also check to see if the materials describe a dispute that may fall inside the Commission’s statutory authority (“jurisdiction”) to address. In those cases in which an apparent defect is identified, the Commission advises the appellant of the issue and gives the appellant a chance to respond. The Commission then decides whether it has jurisdiction and issues a written ruling on that question.
B. Designation of hearing examiner and contact with the parties
For those cases that do not clearly present a jurisdictional issue, the Commission will typically designate a “hearing examiner” to preside over the appeal. The Commission will notify the parties of the designation of the hearing examiner with an Order Appointing Examiner and a cover letter explaining the examiner’s role. After the examiner has been designated, that individual will contact the parties to schedule a prehearing conference.
C. Prehearing conference
This conference is held by telephone. The goals of the pre-hearing conference include eliminating misunderstandings held by the parties, identifying the real disagreements that need to be addressed (as well as topics on which the parties may agree), and developing a schedule for continuing to process the case. The examiner will often ask questions in an effort to assess whether there is some possibility the parties can agree to settle the dispute and avoid a hearing. The conference is usually an appropriate time for the employing agency to raise any jurisdictional or timeliness objections it might have, and for the parties to identify procedural questions. The parties may be ready to set a hearing date and the examiner typically seeks to establish consensus in terms of the issue for the hearing. The issue should concisely identify the personnel action that is in dispute and refer to the legal standard the Commission will apply when deciding the case. It frames the dispute and makes sure, before the hearing, that the parties understand the possible scope of the hearing. It is common for the examiner to propose an issue that is acceptable to the parties. However, if the parties cannot reach an agreement, the examiner will set the issue. Other topics may be addressed during the prehearing conference and it may be appropriate to reconvene the conference at a later date. The examiner will prepare a written summary of the conference and provide a copy to the parties.
Each party may request information and documents from the other side in an effort to learn relevant facts, and the Commission encourages the parties to voluntarily exchange information without filing formal discovery requests. The parties almost always follow the informal, voluntary approach. Nevertheless, Commission rules provide at Sec. ERC 93.03, Wis. Adm. Code, that parties have the right to conduct discovery in the same manner as in judicial proceedings. This means, for example, that the respondent agency could take an appellant’s deposition (a proceeding where the appellant or other witness may be questioned about the case while under oath and while the testimony is being recorded by a court reporter but the hearing examiner is not present). All parties to the case may carry out discovery by taking a deposition and may send questions (interrogatories) to be answered in writing. Specific discovery procedures are established in Ch.804, Stats.
The parties also have the right to use discovery to obtain copies of relevant documents. For example, in a classification case, the appellant might request copies of comparison position descriptions that respondent relied upon when deciding how to classify the position. Discovery is not the same thing as making an “open records” request and it will rarely make sense for an appellant with a pending appeal to make an open records request to obtain related information from the employer.
Discovery should be conducted well in advance of the hearing. A party receiving interrogatories or a request to produce documents has, by statute, a period of 30 days to reply to the request. Sometimes an examiner will establish specific discovery deadlines in a case.
There is no need to copy the hearing examiner during the discovery process unless a disagreement arises and the parties have already discussed their differences and made a good faith effort to resolve them.
You have access on the Commission’s website to brief summaries of some past decisions that have addressed parties’ disputes about the discovery process: Discovery and Remedies Outline
E. Fact stipulations (agreements)
In some cases, the parties can agree on all or some of the facts that are necessary to decide the dispute. In these circumstances, the parties should enter into a written agreement that carefully describes the scope of their understanding. The parties will still have an opportunity to argue, usually in writing, how the law should be applied to those facts.
F. Exchange of witness lists and exhibits
The parties are required to exchange witness lists and hearing exhibits at least 3 working days prior to the beginning of the hearing, unless they agree to an earlier date. This requirement includes providing the hearing examiner with a set of the exhibits by the same date. Failure to comply with this requirement may result in exclusion of testimony from witnesses, exclusion of exhibits, or both. The exchange requirement is explained more fully in the Commission’s rules. See Sec. ERC 93.02, Wis. Adm. Code. The examiner may ask for the exhibits to be numbered in advance. In any event, those exhibits with multiple pages should be stapled or all of the exhibits should be placed into a binder. The hearing will usually run more smoothly if each party takes two sets of that party’s exhibits to the hearing (in addition to the copies previously provided to the opposing party and the hearing examiner) so that the witness, each party, and the examiner may all refer to their own copies at the same time.
Except under unusual circumstances, any testimony must be presented during the hearing and the Commission will not consider a written statement from a witness who is not made available at the hearing.
G. Witness attendance
Each party is responsible to make sure their own witnesses will be present for the hearing. See Sec. ERC 93.05, Wis. Adm. Code. It is especially important for the appellant (or appellant’s representative) to consider and take care of this requirement well in advance of any hearing. In many instances, the parties are able to agree that the employing agency will make sure specified employees are available when they are scheduled to testify. Should it be necessary, the hearing examiner has statutory authority to direct state employees to attend hearings by sending them a letter. The hearing examiner also may sign a subpoena for other witnesses who are not employed by the State. It is the responsibility of the party requesting the subpoena to arrange to have it properly served on the witness and to obtain any required documentation of that service. The Commission expects the parties to make arrangements so that witnesses do not spend a lot of time at the hearing site waiting to testify. At the discretion of the examiner, testimony may be taken by telephone rather than in person. Sec. ERC 94.03(6)(c), Wis. Adm. Code. However, a party that intends to have a witness testify by telephone should notify the opposing party and the examiner of the request at least a week in advance of the hearing so that the examiner may rule on the request and make any necessary arrangements to receive the testimony.
H. Hearing postponements
The hearing examiner sets the date of the hearing, usually with input from the parties. The parties should assume that the hearing will take the full day (or days) for which it is scheduled, and should not make any conflicting commitments. Once a hearing is scheduled, postponements are only granted upon a showing of “good cause”, as provided in Sec. ERC 94.02, Wis. Adm. Code. That rule describes the procedure to be followed if a party wishes to request a postponement. As a general matter, good cause for a postponement will not exist where the requesting party is unprepared for the hearing, has waited too long to begin settlement negotiations, to seek an attorney for representation, or to begin discovery, or has waited too long before making the postponement request after learning of the reason for the request.
III. At the Hearing
Relatively few appeals make it all the way to the hearing stage. Most are resolved by an agreement between the parties or by the appellant’s decision not to pursue the matter further. However, once a date has been set, those parties hoping for success at hearing will need to spend substantial time preparing for the hearing.
If a party fails to appear at a scheduled hearing, the Commission may decide that it is appropriate to dismiss the appeal. Sec. ERC 94.03(8), Wis. Adm. Code.
The hearing is not an informal discussion of the appeal. It is an orderly proceeding that parallels (but is less formal than) a trial in court. The parties have an opportunity to present evidence that is relevant to the issues in the case. Sec. ERC 94.03(5), Wis. Adm. Code. The evidence that may become part of the official hearing record is not restricted by all the formal “rules of evidence” that have to be applied in a court proceeding. While the legal “privileges” that are recognized in Wisconsin must be applied, they rarely arise. Ch. 905, Stats. The receipt of “hearsay” evidence and the weight to be given such evidence is discretionary with the examiner. Hearsay is a complicated legal term that in very general terms refers to either hearing testimony or a document that describes a statement made by someone else at a different time, where the “someone else” is not going to be a witness at the hearing.
The information presented at the hearing is the “hearing record” and serves as the basis on which the Commission will make findings and issue a decision.
The hearing is conducted by the designated hearing examiner, as provided by s. 227.46(1), Stats., and not by the full Commission. The hearing examiner oversees the hearing, records it, and rules on procedural issues and on disputes about whether certain evidence should be considered.
The parties are often provided an opportunity at the beginning of the hearing to agree to the admission of some or all of the exhibits that were submitted prior to hearing. In order for the Commission to consider those exhibits to which the parties cannot agree, the documents must be offered and admitted during the course of the hearing.
Before calling any witnesses and if requested, a party may make an “opening statement” to the examiner in an effort to briefly summarize 1) the nature of the dispute; 2) the evidence the party hopes to present; 3) and specific decisions issued in the past that have an important bearing on the outcome of the case.
Except for appeals from disciplinary actions (including layoffs), the burden of proof in civil service cases is on the appellant. Typically, the Commission requires the party with the burden of proof to call witnesses first. It is up to the party with the burden to establish to a reasonable certainty, by a preponderance of the evidence, the facts necessary for a favorable decision.
Each party should be prepared to obtain the information from witnesses that the party wishes the hearing examiner (and Commission) to consider. This may be done by having the witness respond to specific questions or by having the witness present information in the form of a narrative statement. All witnesses will be placed under oath by the examiner.
Following a party’s direct examination of each witness, the opposing party will be given an opportunity to cross-examine. When this is concluded, the initial party may ask further questions on redirect examination before calling the next witness.
When the party with the burden of proof has finished putting in its evidence, the opposing party will present its case by calling witnesses and moving for admission of exhibits not already addressed.
Following the presentation of the opposing party’s case, the party with the burden of proof may offer rebuttal evidence. Rebuttal evidence is testimony, or documents, designed to rebut the other party’s evidence. Generally speaking, however, rebuttal information is admissible only when a new fact or theory has been developed by the other party and the fact or theory could not have been reasonably anticipated before the hearing. In other words, rebuttal is not a catch-all for material that should have been part of the main case.
Once the “evidentiary” portion of the hearing (testimony and exhibits) is completed, the parties are not allowed to add to the factual “record” that has been created. However, the parties usually have the chance to make final arguments, either orally (typically before departing from the hearing) or in writing (a “brief”) according to a schedule established by the examiner. In these arguments, the parties may set forth the facts they believe to have been established during the hearing and may offer arguments about how the law should be applied to those facts to reach a certain result. The parties may purchase a copy of the electronic recording of the hearing to assist them when preparing their brief. The parties are not allowed to use their briefs to expand on the factual record created at the hearing and any new “evidence” will not be considered.
IV. Following the Hearing
Following the conclusion of the hearing and after the receipt of any briefs, the hearing examiner will analyze the evidence and arguments. The examiner prepares a draft of a decision that sets out the important facts of the case, identifies the governing law, and applies the law to the facts. If the examiner believes the evidence warrants a decision in favor of the appellant on the merits of the dispute, the examiner will mail the parties a “preliminary proposed decision” that provides the appellant an opportunity to request reimbursement of certain costs associated with pursuing an appeal, as provided in Sec. 227.485, Stats. After receipt of any request for costs and the respondent’s response, the examiner will issue a Proposed Decision and Order that addresses both the merits of the dispute and the question of whether costs are appropriate. On the other hand, if the examiner believes the merits of the appeal should be resolved in favor of the respondent agency, the examiner will issue a Proposed Decision and Order and never reach the topic of costs.
Copies of the Proposed Decision and Order will be sent to the parties who then will be given a period of time to submit written objections or request oral argument in front of the Commissioners. The Commission only rarely grants an oral argument request. The Proposed Decision and Order, along with any objections, then goes to the full Commission for review. After considering the input from the parties, the Commission issues a decision. Any decision that has the effect of closing a case is reviewable in circuit court. Instructions on filing a petition for judicial review, or for rehearing before the Commission, are included with the copy of the final decision that is sent to the parties.
Contact the Wisconsin Employment Relations Commission.